Long and winding road: The role of courts, zero tolerance and school exclusion in Mass.

Issue May 2011

Education is a critical component of good citizenship and robust participation in a democratic society. As we begin the 21st century, the demands of the knowledge-based economy create an even greater premium on education. But in Massachusetts, children in general education can be excluded from school and denied all educational opportunities for one youthful mistake.

Evidence suggests school exclusions are meted out disproportionately and that those most affected are black/African American and Hispanic/Latino students. Children excluded from education suffer lifelong consequences. In this context, when and how a school decides to exclude a child from public education becomes an increasingly important access to justice question.

School exclusion is ineffective and detrimental. As the educational stakes get higher, the need for procedural due process protections increases. Given the potential harm and the attendant due process implications, courts have a duty to ensure that every child in the commonwealth has a genuine opportunity to access public education.

Courts have recognized that education is a critical component of good citizenship

The U.S. Supreme Court has described education as "the very foundation of good citizenship."1 The Court cited the nation's founders who "recognized that education was essential to the welfare and liberty of the people."2 As the Court recognized, "it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education."3

The Massachusetts Constitution also states the importance of education:

Wisdom, and knowledge, as well as virtue … being necessary for the preservation of their rights and liberties … it shall be the duty of legislatures and magistrates, in all future periods of this commonwealth, to cherish the interests of literature and the sciences, and all seminaries of them; especially … public schools and grammar schools in the towns.4

The Supreme Judicial Court held that this language is not merely aspirational; it "imposes instead a constitutional duty on the commonwealth to ensure the education of its children in the public schools."5

Despite this recognition, state law allows a school district to permanently deny students access to a public education for misbehaving, with little recourse and few due process protections. School committees have long had the ability to permanently exclude students from their school district.

In 1993, the Massachusetts Legislature enacted the Education Reform Act (the act), which expanded a school principal's authority to exclude students for conduct that threatens the safety of students and staff.6 The change meant that long-term and permanent exclusion decisions are made at the school level, rather than at the district level. The act's language gives school administrators unfettered discretion to exclude students.7

Subsequently, many school districts adopted zero tolerance discipline policies. Zero tolerance policies create an inflexible environment wherein a school imposes punishment based solely on conduct, with little or no consideration of attendant circumstances like intent. Zero tolerance policies expanded harsh punishment to offenses that are not a threat to school safety.8

Massachusetts children can be permanently excluded from school regardless of their age, and the school district has no obligation to provide them with any educational services thereafter.9 Once expelled, no other school district is required to enroll a student,10 and there is no legal obligation for a school to ever readmit the student or even reconsider its decision.

The dearth of procedural protection afforded by the law itself for a student raises serious due process concerns. The state statute does not provide adequate guidance and school exclusion hearings are not performed in any sort of uniform manner.11

A recent case in the District of Massachusetts highlights the need for meaningful judicial review of a school's decision to expel.12 The court enjoined a school district from expelling a student under a zero tolerance policy.13 The court held the policy violated the student's right to due process.14 In its reasoning, the district court recognized, "as the stakes get higher, the need for safeguards and protections increase."15

The Massachusetts courts defer to school administrators on disciplinary decisions, but that deference has limits. Minimal scrutiny should not mean the absence of scrutiny.16 When school districts impose long-term or permanent exclusion with no opportunity for review, the school district should meet a high evidentiary burden and provide procedural protection, because school exclusion can "seriously … interfere with later opportunities for higher education and employment."17

When evidence is murky and facts disputed, "[t]he risk of error is not at all trivial, and it should be guarded against if that may be done without prohibitive cost or interference with the educational process."18

In the years following the act, the Department of Elementary and Secondary Education (DESE) - then known as the Massachusetts Department of Education (DOE) - issued an advisory encouraging schools to carefully consider the decision to exclude students.19 The DOE noted the extraordinary nature of school exclusion and the important steps schools should take to ensure this punishment is used sparingly and fairly.20

Yet, exclusions from Massachusetts schools dramatically increased. In the 1992-93 school year, schools reported 983 school exclusions (10 days or longer). Ten years later, schools reported 1,949 school exclusions. By 2007-08, there were 4,201 exclusions.21

As in earlier years, segments of the 2007-08 student population received long-term exclusions at disproportionately high rates: low-income students, special education students and black/African-American and Hispanic/Latino students.22 Studies have shown that black/African-American and Hispanic/Latino students nationwide are subjected to office referrals and disciplinary consequences for less serious and more subjective reasons than their classmates.23

Analysis of Massachusetts data suggests this is also true in the commonwealth. As previously noted,24 the disproportionate exclusion of black/African-American and Hispanic/Latino students emerges when exclusion figures are compared to the enrollment figures of these racial groups in Massachusetts schools in 2007-0825 and increases for lengthier exclusion periods.

These disciplinary measures result in an incredible amount of lost instructional time. During 2009-10, Massachusetts students missed a total of 199,056 days of school due to disciplinary exclusions.26 Punishments resulted in 60,610 disciplinary removals, of which 46,356 were out-of-school suspensions or expulsions.27

Research confirms the life-changing nature of exclusion from school

The American Psychological Association (APA) reported on the negative effects of excluding a child from school, pointing out that adolescents are psychologically immature.28 Preliminary studies of zero-tolerance policies raise concerns that school exclusion "may create, enhance, or accelerate negative mental health outcomes for youth by creating increases in student alienation, anxiety, rejection, and breaking of healthy adult bonds."29

The APA recommends that schools focus on keeping students in an active learning environment, even students who create repeated disciplinary problems.30 The APA also noted that 10 years of zero tolerance policies have not improved school safety.31

The American Academy of Pediatrics (AAP) echoed and affirmed the APA's concerns.32 Out-of-school adolescents are more likely to engage in harmful behaviors, and their risk of suicide may be expected to increase.33 Moreover, the AAP stated, "[t]he lack of professional assistance at the time of exclusion from school, a time when a student most needs it, increases the risk of permanent school drop-out."34

Meanwhile, the Rennie Center for Education Research & Policy (the center) reported on the detrimental effects of disciplinary exclusion within Massachusetts.35 Exclusion breaks students' connection with their school, which has detrimental academic, social and psychological consequences.36 The center found that punishment by exclusion may not be developmentally appropriate for adolescents because adolescents lack neurological maturity, making them susceptible to temporary lapses in judgment without due regard for potential consequences.37

Despite these serious consequences, the center found that disciplinary exclusion in Massachusetts is common. The center analyzed these trends and concluded that exclusion may be overused in Massachusetts schools:38 "The high rate of out-of-school suspension is particularly troubling given findings from national research that show out-of-school suspension is not an effective deterrent for inappropriate behavior."39

Recently, the Massachusetts Graduation and Dropout Prevention and Recovery Commission concluded that disciplinary policies are linked to dropout.40 The commission characterized the commonwealth's discipline policies as "outdated" and recommended reform, such as ending permanent expulsion.41 It recognized the peril of laws that allow school districts to permanently exclude students, "thereby cutting off young people at the moment they most need intervention."42

Students suffer the irreparable injury of exclusion

A separate study from the Rennie Center revealed that the average Massachusetts high school dropout costs taxpayers more than $275,000 over his or her lifetime,43 creating a disparity of more than $450,000 between dropouts and graduates in their lifetime fiscal impact on the Massachusetts' economy.44

Compared to high school graduates, students who drop out are less likely to be employed and make less money annually,45 contributing to the poverty rate.46 They have higher health care costs,47 are three-and-one-half times more likely to be arrested, and more than eight times as likely to be incarcerated.48 Across the country, 68 percent of state prisoners have not received a high school diploma.49 Massachusetts taxpayers will continue to bear the cost for these adults and their children throughout their lives.50

A recent American Bar Association (ABA) article compared excluding a child from school to a lengthy prison sentence.51 Although "vastly different deprivations of a child's rights," the article pointed out that both have consequential and long-lasting effects on a child.52 At present, "[c]hildren who do not finish school are essentially doomed to a life sentence of crime and unemployment."53


We imperil our young people's future by creating barriers to education.

"'[F]orced ignorance, by failing … to provide a student with a publicly funded education, is not a rational or appropriate remedy for student misconduct regardless of the severity of such misconduct.'"54 The DESE advisory counsels schools to mete out punishment by exclusion sparingly. Social science research from those working with children concludes that school exclusion has significant, negative impacts on child development that can fundamentally limit a child's lifelong prospects.

A recent government commission acknowledged that school exclusions are linked to dropout and recommended ending permanent school expulsion. Despite a duty to educate our children and evidence of the racially disparate overuse of harsh discipline policies, a dearth of procedural due process protection and minimal judicial scrutiny of school exclusions continue.

Courts do have a role to play here. With appropriate due process protections in place and overseen by the courts, we can work to ensure that all children in the commonwealth, regardless of gender, income or race, have a genuine opportunity to access public education.

1Brown v. Bd. of Educ., 347 U.S. 483, 493 (1954).
2Wis. v. Yoder, 404 U.S. 205, 221 (1972) (citing Letter from Thomas Jefferson to Joseph Cabell, Sept. 9, 1817, in 17 Writings of Thomas Jefferson 417, 423-424 (Mem. ed. 1904)).
3Brown, 347 U.S. at 493.
4MASS. CONST. pt. II, ch. V, § II.
5McDuffy v. Sec. of Exec. Office of Educ., 415 Mass. 545, 551 (1993).
6The Act complies with the federal Gun Free School Act; however, the Massachusetts law retains more discretion.
7M.G.L. c. 71, §§ 37H and 37H ½ were subsequently amended to their current form.
8Rennie Center for Education Research & Policy, Act Out, Get Out? Considering the Impact of School Discipline Practices in Massachusetts 3 (2010), available at /act_out_get_out_considering_the_impact_of_school_discipline_practices_in_massachusetts.
9Bd. of Educ. v. School Comm. of Quincy, 415 Mass. 240, 245 (1993).
10See MASS. GEN. LAWS ch. 71, §§ 37H-37H1/2 (2011).
11See Eric Blumenson & Eva S. Nilsen, One Strike and You're Out? Constitutional Constraints On Zero Tolerance In Public Education, 81 WASH. U. L. Q. 65, 69 n.20 (2003).
12LB v. O'Connell, No. cv-40124 Excerpt Mot. Hr'g Tr., ECF No. 15 (D. Mass. Aug. 6, 2009) (granting student's motion for a preliminary injunction).
13Id. at 5-6.
14Id. at 22.
16See Doe v. Superintendent of Schs. of Stoughton, 437 Mass. 1, 5 (2002) (noting substantial deference to school officials in matters of discipline) (citing Doe v. Superintendent of Schs. of Worcester, 421 Mass. 117, 132 (1995) (applying rational basis review to school officials' decision to expel student)).
17Goss v. Lopez, 419 U.S. 565, 575 (1975) (requiring minimum procedure protections for students facing long-term exclusion from school).
18Id. at 580.
19Robert V. Antonucci, Massachusetts Commissioner of Education, Advisory Opinion On Student Discipline (Jan. 27, 1994),
21Mass. Dept. of Elementary & Secondary Education,
22See Act Out, Get Out, supra note 810, at 14-15.
23Id. at 18; see also Russell J. Skiba et al., Race Is Not Neutral: A National Investigation of African American and Latino Disproportionality in School Discipline, 40 SCHOOL PSYCHOLOGY REVIEW 85, 86 (2011).
24Mass. Dept. of Education, Student Exclusions in Massachusetts Public Schools: 2002-03 2 (2004) available at
25Disproportional Exclusion in 2007-08 Enrollment data is available at The exclusion data was obtained from DESE by Massachusetts Appleseed pursuant to a freedom of information act request.
26Jen Vorse Wilka, 2010 SSDR Data-Initial Analysis, at 1 (2010) (describing preliminary findings from ESE's Student Safety and Discipline Report for 2009-10 school year).
27Id. at 8.
28American Psychological Association, Are Zero Tolerance Policies Effective in the Schools? An Evidentiary Review and Recommendations, 63 American Psychologist 852, 855 (2008).
29Id. at 856.
30Id. at 858.
31Id. at 860.
32American Academy of Pediatrics, Policy Statement: Out-of-School Suspension and Expulsion, 112 Pediatrics 1206, 1207 (2003) (reaffirmed 122 Pediatrics 450 (2008)).
35See Act Out, Get Out?, supra note 22.
36See Act Out, Get Out?, supra note 22, at 5.
37See Act Out, Get Out?, supra note 22, at 4.
38See Act Out, Get Out?, supra note 22, at 17-18.
39See Act Out, Get Out?, supra note 22, at 17.
41Id. at 21.
43Rennie Center for Education Research & Policy, Meeting the Challenge: Fiscal Implications of Dropout Prevention in Massachusetts 1 (2011) (describing "disturbing societal costs" of a student's failure to finish high school).
45Andrew Sum et al., Boston Youth Transitions Task Force and Boston Private Industry Council, An Assessment of the Labor Market, Income, Health, Social, Civic and Fiscal Consequences of Dropping Out of High School: Findings for Massachusetts Adults in the 21st Century, 13 (2007) available at
46Id. at 42.
47Id. at 57.
48Fight Crime, Invest in Kids, School or the Streets: Crime and America's Dropout Crisis 2 (2008) available at
50See Sum, supra note 45, at 81.
51Sarah Biehl, School Expulsion: A Life Sentence?, CHILDREN'S RIGHTS LITIGATION, Spring 2011, at 2 (ABA Section of Litigation Children's Rights Litigation Committee). In 2009, the American Bar Association stated that schools should provide full procedural protections when a school seeks to exclude a student from his or her educational program. See Recommendation and Report, 2009 A.B.A. H.D. 118B.
52See Biehl, supra note 51, at 2 (citing Graham v. Florida, 130 S. Ct. 2011, 2026-27 (2010)).
53Id. at 5.
54Maureen Carroll, Comment, Educating Expelled Students After No Child Left Behind: Mending an Incentive Structure That Discourages Alternative Education and Reinstatement, 55 UCLA L. REV. 1909, 1921 (2008) (quoting Cathe A. v. Doddridge County Bd. of Educ., 490 S.E.2d 340, 345 (W. Va. 1997) (quoting trial court decision)).